New York City police stopped 203,500 people in the first three months of this year. This is a record high for the city’s “Stop, Question, Frisk” program which police credit with decreasing the number of homicides in the city. Last year there were 685,724 stop-and-frisk encounters in the city. Only 5 percent of the stops in the first three months of the year led to arrests and 5 percent more led to citations for infractions.

One of the problems with the program is that it targets minorities. Of those stopped this year 54 percent of the people stopped were black, 33 percent were Hispanic, 9 percent were white and 3 percent were Asian. While 4.7 percent of the population are African American men between the ages of 14 and 24 they account for 41.6 percent of the stops last year.

Another problem with the program is its questionable legality. While a police officer can have a casual conversation with anyone who consents to have a conversation with the officer, in order to stop a person the officer must have a reasonable belief that a crime was committed and that the person was involved in the crime. To frisk an individual the officer must also have a reasonable belief that the person has a weapon. Without a reasonable belief of involvement in a crime or possession of a weapon any weapons found can be suppressed and inadmissable in court. But there is no punishment for officers who commit illegal searches and seizures. Considering that only ten percent of those stopped are arrested or cited it can be presumed that the vast majority of the stops and frisks are illegal. The result of these stops and risks are not only that the personal liberty of individuals are severely infringed upon but that the citizenry, particularly racial minorities lose faith in our police and our criminal justice system.

The Fourth Circuit Court of Appeals reversed the conviction of Obie Lee Powell for possession of crack cocaine due to an illegal pat search of Powell. Powell was a back seat passenger in a car driven by Jermaine Mitchell. The car was pulled over by the police due to a burned out headlight.

The officers did a license check on Powell, it came up suspended and the officer learned that Powell had a prior conviction for armed robbery. Based on this information the officers ordered Powell to get out of the car and pat searched him. ¹ A gun was found in a backpack near Powell’s seat in the car. He was arrested after the gun was found but he was not convicted of possessing the gun. During a search incident to the arrest crack cocaine was found on Powell and this was the basis for the conviction.

The issue on appeal was whether the officers’ pat search was justified by officer safety. During the pat search the gun was found. This justified his arrest which lead to the cocaine being found.

The government argued that the pat search was legitimate based upon Powell’s past record and the fact that he lied about the status of his license. But the court applying Terry found that ” that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the
night of the traffic stop.” Without evidence that Powell was armed and dangerous the officers had no right to pat search Powell and the the arrest as well as the search incident to the arrest were fruits of the illegal pat search. The cocaine had to be suppressed and the conviction vacated.

Manhattan Borough President Scott Stringer called for a reduction in the city’s stop and frisk policy. Last year the NYPD made 600,000 stops and this year they will probably make 700,000.

Most of the stops are of young African American and Latino men. Over 85 percent of the stops are of non-whites. A young African American or Latino is nine times more likely to be stopped than a white person. Yet only seven percent of these stops result in arrests.

Under Terry v. Ohio in order to stop someone, an officer must have a reasonable suspicion that the individual is involved in criminal activity and in order to frisk that person the officer must have a reasonable suspicion that the person is carrying a weapon.

But all too often officers, knowing that they do not have a reasonable suspicion that the young person of color is involved in criminal activity of carrying an illegal weapon stops and frisks the individual any way. Sometimes they do it purely for harassment. Other times they do it because they hope to get lucky and find that the person is either on parole or probation with a search clause allowing the officer to search the individual without a reasonable suspicion of wrong doing. Third world members are often so used to being searched that they consent to what would otherwise be an illegal search. If they consent to the search anything found on them (drugs, guns, etc.) can be used against them in court. And sometimes, to be honest, police write false reports, alleging consent when consent was not given. Knowing that a DA, a judge or a jury is more likely to believe a police officer than a minority youth.

One of the problems with the extraordinary number of searches of minority youth is that they and their families learn not to trust the police. As a result they do not cooperate with officers who are investigating crime and do not reports criminal acts to the police.

Stephen Digiovanni rented a car in Fort Lauderdale, took the autotrain to Washington D. C and drove towards his home in Boston. Driving on I-95 in Maryland, he was stopped by Trooper Chrisotpher Connor for following the car in front of him too closely.

Connor noticed that Digiovanni was somewhat nervous. Furthermore, the car was clean, shirts were hanging in the back without a clothing bag and there was a hygiene bag in the back seat. All of these things he claimed gave him a reasonable suspicion that Digiovanni was a drug trafficker.

While he immediately asked for Digiovanni’s driver’s license and the rental car contract, he did not begin the computer check of the license until over ten minutes after the original stop. During this time he concentrated his investigation on narcotics, asking numerous questions none of which provided answers that indicated a reasonable suspicion of trafficking.

Digiovanni gave consent to a search of the vehicle but was unable to open the trunk. Before Connor searched the interior of the vehicle he wrongly told Digiovanni that he could not revoke his consent. During the search of the interior of the vehicle Connor found 34,091 oxycodone tablets.

Digiovanni’s motion to suppress the pills and some of his statements was granted and the government appealed to the Fourth Circuit Court of Appeals.

Prior to detaining someone an officer must have a reasonable suspicion of criminal activity. The detention is limited to the length of time necessary to dispel the officer’s suspicion. The scope of the investigation is limited to investigating the events that lead up to the stop. If an officer determines during the investigation that there is a reasonable suspicion of other crimes the officer may extend the detention. But an officer may not extend the scope of the investigation beyond the original reason for the investigation unless the officer has a reasonable suspicion and that reasonable suspicion is developed during the time the officer needs to carry out a diligent investigation of the original reason for the detention.

There is no question Connor had a reasonable suspicion to stop Digiovanni. The trooper’s vehicle was equipped with with a video camera and it showed Digiovanni following closely behind the car in front of him. But the length and the scope of the detention exceeded what was necessary for a diligent investigation and preparation of a warning ticket. The court found Connor’s belief that the lack of a clothing bag for Digiovanni’s shirts irrelevant to the finding of a reasonable suspicion and bordering on the absurd. Likewise, it found his reliance on the clean car and the presence of the hygiene bag to be “absurd.” While an officer may ask questions unrelated to the original stop if it does not delay the investigation the court found in this case the focus of the detention was not on the traffic citation but rather on a narcotics investigation for which there was no reasonable suspicion and it upheld the district court’s suppression order.

What do we learn from this case. First that offices can post hoc claim that any fact is a reason to support an arrest or search. Unless officers are stopped this will lead to the dissolution of the Fourth Amendment. Second that people talk to much. Digiovanni should have given the officer his driver’s license and rental contract. On further questioning he should have said. I don’t want to talk any more. May I leave?

In Michigan v. Summers the Supreme Court held that a search warrant for a residence allows officers to detain those in the residence during the search and that this right extended to a man leaving the residence as officers entered. In United States v. Bailey the Second Circuit Court of Appeals, last week, extended the permissible detention to an individual the officers saw drive away from the residence in order to allow them to follow and stop the individual. The officers then brought the individual back to the residence and detained him until the search was over.

With a search warrant for a basement apartment at 103 Lake Drive in Wyandanch, New York officers arrived at the residence. They saw two men, one of them Chunon Bailey leave the unit and drive away. They followed the vehicle, stopped it and brought the men back to the residence. Bailey was detained and he was arrested after guns and drugs were found in the residence.

In Summers the Supreme Court provided three reasons to justify the detention of someone leaving a residence: (1) “preventing flight in the event that incriminating evidence is found”; (2) “minimizing the risk of harm to the officers”; and (3) facilitating “the orderly completion of the search.” In a footnote the Second Circuit says that the first and second criteria apply. But it gives no facts to support this view. In another footnote it states that the police officers testified that the reason they didn’t immediately detain Bailey was that they were afraid that by doing so they would alert anyone else in the house to the police presence and a dangerous situation may result.

It is one thing to follow the Supreme Court’s criteria. It is another to make a blanket holding. The Second Circuit held, “that Summers authorizes law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.”

This issue may come before the Supreme Court. The Circuit Courts are divided. The Fifth, Sixth, and Seventh Circuits, like the Second Circuit, upheld detentions of people after they left the scene. The Eighth and the Tenth Circuits ruled to the contrary. They held that once a person left the residence the Summers criteria are no longer applicable. If the person leaves the scene without knowing that a surveilance is in progress then the officers are not in danger. The Second Circuit’s response is that the officers are required to make a difficult decision: either to detain Bailey outside the residence and possibly notify those inside that the police are present or to to let Bailey, who they call a “person of interest to leave without being detained. While the search warrant indicates that a judge found probable cause to believe that someone in the residence may have committed a crime at the time of the detention there was no individualized suspicion, as required by Terry that Bailey committed a crime and he should not have been detained. When you detain someone a mile away from the house, return they to the house and require them to wait until the search is over it is no longer the minimal intrusion found by the Supreme Court in Summers.

After a gang shooting, officers staked out the hospital where the victim was dying. They observed a car with four people, at least three of whom they recognized as members of the gang. Fearing that the passengers in the car might try to get revenge for the shooting, they followed the vehicle. Together with another police car they pulled over the gang members for speeding. The men in the car were noticably nervous. They were breathing heavily. ¹ The officers ordered the men out of the vehicle and performed pat searches on them but found nothing.

They searched the vehicles and initially found nothing. Officer Scott O’Brien arrived on the scene. He had undergone advanced training in finding hidden compartments in vehicles. He observed a magnet on the dashboard. Magnets are often used to open metalic hidden compartments. He noted that the tail pipe had been tampered with. Within five minutes of beginning his search he found a loaded handgun and cocaine in the front seat console. Melvin McGregor, the driver of the vehicle was arrested.

At trial he moved to suppress the gun and the cocaine on Fourth Amendment grounds. He claimed there was not probable cause to search the vehicle and that the initial stop was a pretext. ² The motion was denied and he appealed.

Several issues were raised on appeal regarding the search of the vehicle. First McGregor objects to the duration of the search. The First Circuit found that while the actual duration of the search is somewhat foggy and over an hour passed from the time of the search to the time of the booking, Officer Brian Smigielski testified that the actual search lasted only five minutes and the appellate court is limited to viewing the facts in such a way as to uphold the findings of the trial court. Since the trial court denied the motion to suppress, the appellate court reasons the trial court must have accepted Smigielski’s testimony on the issue.

Second, McGregor challenged the scope of the search. The scope was limited to finding weapons that might endanger the officers. Upon stopping a vehicle, the police may pat search the passengers and perform a limited search of those parts of the vehicle within the reach of the passengers where weapons may be found if they have reasonable grounds for suspecting that the detainees are dangerous. Here the court found that considering the facts that the passengers were nervous, that a shooting had recently occurred, that at least three of the people in the car were gang member, that gangs often carry out revenge shootings, that the four had met at the hospital, and that they left the hospital in a hurry the officers who had considerable experience investigating gang activity could legitimately believe that a gun would be found in the vehicle. Thus the scope of the search and the seizing of the gun in the front seat console was necessary to protect officer safety.

While any individual factor may not have provided a reasonable suspicion to search the vehicle, the court found that the totality of the circumstances justified the search and it affirmed the conviction

Henderson North Carolina Police Detective J. Ragland ¹ saw an SUV with a young man sitting in the driver’s seat, apparently talking to himself. A second young man then sat up in the front passenger seat. Ragland recognized the second young man as David Foster. Ragland had dated Foster’s cousin and had previously arrested him for driving without a license. He knew that Foster had a marijuana related arrest.

He saw Foster’s arms “shifting” and “going haywire.”

Ragland drove across the street and observed the two men. Fifteen minutes passed and nothing happened. During that period Ragland called the head of narcotics and found out that Foster was the subject of an investigation. He also called for a back-up car.

The two cars blocked the SUV. The officers got out and approached the vehicle with guns drawn. Ragland asked the driver for his license. The driver told him it was in his backpack. Ragland performed a pat search and let the driver get his license. Ragland then asked for the registration. Foster opened the glove compartment to get it. Ragland saw a baggie of cocaine in the glove compartment. The gentlemen were arrested.

In case you haven’t figured it out, I will tell you that both the driver and Foster are African American. Studies have shown that African Americans are more likely to be detained, and more likely to be searched than any other racial or ethnic group. While in this case the officers found cocaine, African Americans are less likely to be found in possession of contraband or criminal evidence in Terry searches.

In order to detain someone the stop must be supported “by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” As the Court in Terry v. Ohio said “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The U. S Attorney pointed to three factors in support of the search. First he/she pointed to the officer’s knowledge of Foster’s record. Second, the U. S. Attorney pointed to Foster’s sitting up from a crouched position and finally the shifting of Foster’s arms. The Fourth Circuit Court of Appeals found that these items, neither individually or collectively provided a reasonable suspicion of criminal activity. The crouching and the shifting could be the result of many legitimate activities. The record by itself or with the current investigation do not provide a reasonable suspicion. The reasonable suspicion has to be that the men were involved in criminal activity at the time of the search. Mere knowledge that at sometime in the past they committed a crime will not do.

Therefore the Court reversed the conviction.

In a rare case the Fifth Circuit Court of Appeals reversed a conviction where the trial judge wrongly denied a motion to suppress evidence.

Corey Raney was driving on a two lane street. Due to gasoline shortages surrounding Hurricane Ike traffic was backed up in his lane by drivers attempting to buy fuel at a gas station. Two officers were providing traffic control but it is unclear if Raney saw them.. He attempted to pass the backed up vehicles. There was no on-coming traffic but one of the officers was standing in the empty lane. Raney was stopped by Houston Police Officer Rohan Walker.

After the car was stopped, Walker smelled marijuana and he thought he saw a marijuana cigarette fall to the ground. He ordered Raney out of the car and searched him, finding a .45 caliber Sig Sauer firearm in his waistband. A records search revealed that Raney was a convicted felon and was not allowed to have a weapon on him. He was arrested and the vehicle was searched.

Prior to trial he moved to suppress the evidence. He alleged at the hearing on the motion and again at trial that Officer Walker had no right to stop him.

To stop a vehicle a police officer must have probable cause that a crime has been committed. The government alleged that Reaney violated three traffic laws. First they alleged that he rode on the wrong side of the road. On this basis the trial court denied the suppression motion. But the appellate court pointed out that under Texas law it is permissible to ride in the left lane to pass vehicles or there is an obstruction in the lane. Second the government alleged that he failed to follow the officer’s orders when Walker told him to get back into the right lane. But there was no evidence he saw or heard the officer order him to get back into the right lane. Third, it was alleged that he drove recklessly. But he was driving 10 to 15 miles per hour. There was no traffic in the left lane and there is no evidence that the officer was in any way in danger as a result of Raney driving on the left side of the road.

On the appeal the government brought up two more reasons. ¹ They claimed that he was passing within 100 feet of the intersection. But the evidence at trial showed that Officer Walker who was between Raney and the intersection was 100 feet from the intersection and Raney was farther away. They also alleged that he failed to stay in one lane. But in this instance he was passing non-moving vehicles and that is legal under the law. ²

The Fifth Circuit reversed the conviction.

There was another issue raised on appeal. The United State attorney made a number of questionable argument in the closing argument. Since the Court reversed the decision base upon the Fourth Amendment issues it did not rule on the U. S. Attorney’s arguments. But it was clearly trouble by the arguments.

First, the prosecutor stated that “[t]he gun was loaded, a round in the chamber, ready to be fired. Bang, bang, bang.” This type of comment wrongly leads to an emotional response by the jury instead of an intellectual determination of guilt. Second, during closing argument the prosecutor accused Raney’s wife Jasmine, who testified at trial of calling Walker a lier. She did not and the judge upheld the defense objection. Finally the prosecutor asked the jury to decide whether the police officers had a motive to “tell something other than truth,” and suggested that the officers would not “put their careers on the line[,]” This is called vouching for a witness. The prosecutor who was not present at the incident cannot tell the jury that a witness is telling the truth.

Edith Hernandez-Mendez and seven young Hispanic men were hanging out across the street from Montgomery Blair High School (BHS) shortly before the end of the school day. The previous day a member of a Hispanic gang was stabbed a couple of miles from the school and the police gang unit decided to surveil the area around the school.

Members of the Hispanic gangs attended the school though apparently the police knew of no connection between students at the school and the stabbing.

The police saw four young Hispanic men across from the school. The four were joined by three other men and Hernandez-Mendez but Hernandez-Mendez stood some distance from the men. At one point however one of the men spoke with her. One of the men, wearing a red shirt ¹appeared to be leading a discussion.

Hernandez-Mendez walked away from the group. One of the police officers who were not in uniform followed her. The police officers decided to make contact with the young people. As the officers approached the men three walked in one direction and three in another. The one in the red shirt started running and got away.

Officer Doherty who was following Hernandez-Mendez was ordered to make contact. He detained her and eventually brought her back to where the men were detained. She was carrying a purse and a wallet. Officer Webster who was in charge the surveillance asked her for ID. She took a credit card out of the wallet. He asked her if she knew the man in the red shirt. She said she did not know anyone. Webster asked to look in her wallet. She let him. He found more credit cards, all in her name. He asked for picture ID. She said she did not have any. He asked for her purse. She refused it. He attempted to grab it and felt a hard object that could have been a gun.

She was arrested and convicted of possession of a gun by an alien and possession of a gun near a school.

At trial she moved to suppress the gun as the fruit of an illegal search. Her motion was denied and the conviction was upheld by the Fourth Circuit Court of Appeals.

A person can be detained if an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [T]he officer must be able to articulate an objectively reasonable suspicion of criminal activity. However the officer may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.”

The Court found that Officer Webster properly relying “on his knowledge of Hispanic gangs in the area, his experience responding to gang-related incidents at BHS, and his observations during the surveillance” had “reasonable suspicion to stop the group of eight young Hispanic people gathered across from the school that afternoon” and frisk them.

Let’s be frank. The Supreme Court in Terry required specific and articulable facts that an individual had committed or was about to commit a crime prior to their being detained. The only specific and articulable facts available to Officer Webster and his crew upon which he could use his experience and training to stop and frisk the young people were their age and their ethnicity. This is profiling at its worst. Detention and frisking cannot be based solely upon ethnicity or age. There is no evidence that any of the young people outside the school were members of any gang ² or that they resembled any of the people associated with the stabbing. They had not committed any crime and there was no evidence against them. The search was illegal and the conviction should have been reversed.

Last year Philadelphia police stopped and frisked 253,333 individuals. Despite the fact that only 44 per cent of the citizens of Philadelphia are African American over 70 per cent of those frisked were African American. The ACLU has filed a suit against the city’s failure to train its police to prevent race-based stops and frisks.

Numerous studies have shown that this is not because African Americans commit more crimes but rather because conscientious decisions by police officers are made to either stop African Americans or to concentrate anti-crime activities in areas where African Americans are more likely to be found.

In the Terry decision the Supreme Court ruled that in order to stop a person an officer must have a reasonable suspicion that the individual is involved in criminal activity. Furthermore once the person is stopped the person can only be frisked if the officer has a reasonable suspicion that the person is armed. But it is clear that the Philadelphia police did not have a reasonable suspicion that the 253,333 people stopped were involved in a crime. After all only 8.4 per cent of the people stopped were arrested. A similar study in New York City showed that only six per cent of those stopped were arrested and only one and a half per cent of those frisked had a weapon. Furthermore ninety per cent of those stopped and frisked in New York were members of minority groups. This hardly meets a “reasonable suspicion” standard.

Philadelphia mayor Michael Nutter boasts about the city’s decreased crime rate but do we want a small decrease in crime at the cost of a loss of liberty. Clearly the founding fathers did not. It was in response to writs of attainder issued by the British government which allows searches without search warrants and without probable cause that they put the Fourth Amendment into the Constitution which mandated the use of search warrants and required probable cause to search a person.